United States v. Berberena

• Decision Date: 11 September 2012
• Docket Number: 12–1103.,Nos. 11–4540,s. 11–4540
• Parties: UNITED STATES of America v. Joel BERBERENA, Appellant. United States of America v. Denroy Gayle, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

694 F.3d 514

UNITED STATES of America

v.Joel BERBERENA, Appellant.

United States of America

v.Denroy Gayle, Appellant.

Nos. 11–4540, 12–1103.

United States Court of Appeals, Third Circuit.

Argued July 11, 2012.

Opinion Filed: Sept. 11, 2012.

Sarah S. Gannett, Esq., Brett G. Sweitzer, Esq., Christy Unger, Esq. [Argued], Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, for Appellants.

Robert A. Zauzmer, Esq., Bernadette A. McKeon, Esq. [Argued], Zane David Memeger, Esq., Jose R. Arteaga, Esq., Thomas M. Zaleski, Esq., Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: RENDELL, SMITH and BARRY, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Defendants Joel Berberena and Denroy Gayle appeal from orders entered in responseto their 18 U.S.C. § 3582(c)(2) motions for sentence reductions to reflect amendments to the United States Sentencing Guidelines that narrow the disparity between sentences for crack cocaine and powder cocaine offenses.¹ They urge that their respective District Courts were not bound by Guidelines § 1B1.10, a newly revised policy statement that limits the extent to which a sentence may be reduced below the prisoner's amended Guidelines range. Defendants contend that, by preventing district courts from straying from the amended Guidelines range to account for departures and variances awarded as part of a prisoner's sentence, the Commission (1) exceeded its statutory authority, (2) violated separation-of-powers principles, and (3) failed to comply with the Administrative Procedure Act's (“APA”) notice-and-comment requirements. For the following reasons, we will affirm the District Courts' refusal to reduce Defendants' sentences below their amended Guidelines ranges.

I.

In 2003, Berberena pled guilty to conspiracy to distribute crack cocaine and powder cocaine, in violation of 21 U.S.C. § 846; possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and possession of powder cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). After his sentence was vacated in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the District Court resentenced him, calculating an advisory Guidelines range of 210–262 months but varying downward to impose a sentence of 150 months in prison.² In 2009, Berberena moved for a sentence reduction in light of Amendment 706 to the Guidelines, which reduced the base offense levels for most crack-related offenses. His amended Guidelines range was 168–210 months. The District Court granted Berberena a variance from the amended range proportional to the variance it awarded him previously and reduced his sentence to 135 months.

In 2006, a jury convicted Gayle of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). In 2007, the District Court calculated a Guidelines range of 168–210 months for the § 922(g) and § 841(a) convictions, but varied downward to 120 months based upon the nature and circumstances of the offense and Gayle's personal history and characteristics. Because Gayle's § 924(c) conviction carried a mandatory consecutive 60–month sentence, the District Court sentenced him to a total of 180 months in prison.

In 2010, Congress passed the Fair Sentencing Act (“FSA”) to “restore fairness to Federal cocaine sentencing” by changing the threshold quantities of crack cocaine that trigger mandatory minimum sentences. Pub.L. 111–220, § 2, 124 Stat. 2372, 2372 (2010). Pursuant to its authority to amend the Guidelines consistent with the FSA, id. § 8, the Commission promulgated Amendment 750. This amendment reduced the crack-related offense levels in § 2D1.1 of the Guidelines. The Commission made Amendment 750 retroactive by adding it to the list of amendments on the basis of which prisoners can move for reduced sentences. See U.S.S.G., App. C., amd. 759. That list appears in subsection (c) of the Commission's policy statement at § 1B1.10 of the Guidelines, which governs sentence reductions as a result of amendments to the Guidelines.

After the new crack-related offense levels became effective, both Berberena and Gayle moved for sentence reductions under 18 U.S.C. § 3582(c)(2).³ As a result of Amendment 750, Berberena's range changed from 168–210 months to 135–168 months. Having already been sentenced to 135 months' imprisonment, Berberena sought a further reduction from the low end of the new range proportional to the variance he received previously. The range for Gayle's § 922(g) and § 841(a) convictions changed from 168–210 months to 110–137 months, to which the mandatory consecutive 60–month sentence for his § 924(c) conviction would be added. Gayle similarly urged the court to reduce his 120–month sentence for the first two offenses below the minimum of the amended range to account for the downward variance it granted him originally.

The government opposed Defendants' motions. It cited the Commission's most recent revision to the policy statement at § 1B1.10, which prohibits courts from reducing a “defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) ... to a term that is less than the minimum of the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(A). The earlier version of the policy statement had permitted prisoners who, like Defendants, originally received below-Guidelines sentences to obtain reductions below their amended ranges in proportion to their earlier departures or variances. Id.§ 1B1.10(b)(2)(B) (2010) (amended 2011). However, it provided that, while comparable reductions to account for departures “may be appropriate,” comparable reductions to account for variances “generally would not be appropriate.” ⁴ Concluding that the “distinction [between departures and variances] has been difficult to apply and has prompted litigation,” the Commission further closed the variance door, so to speak, in adopting Amendment 750. See Notice of Final Action Regarding Amendment to Policy Statement 1B1.10, 76 Fed.Reg. 41332, 41334 (July 13, 2011). The result was the policy statement that the District Courts applied here. It prohibits a reduction below the low end of a prisoner's new range, even if the prisoner originally received a below-Guidelines sentence. The only exception is for defendants whose below-Guidelines sentences were based on a “government motion to reflect the defendant's substantial assistance to authorities.” Only then is a reduction below the bottom of a prisoner's amended range allowed. U.S.S.G. § 1B1.10(b)(2)(B).⁵

Before the District Courts, the government cited § 3582(c)(2)'s requirement that sentence reductions be “consistent with applicable policy statements issued by the Sentencing Commission” to argue that § 1B1.10(b)(2)(A)'s limitation was binding. Defendants, however, urged that the revised version of § 1B1.10 exceeded the Commission's statutory authority, violated separation-of-powers principles, and failed to comply with the APA's notice-and-comment requirements. Neither convinced the District Judges before whom they filed their § 3582(c)(2) motions to ignore the policy statement and reduce their sentences below the amended Guidelines ranges. Instead, the District Judges abided by the revised limitation. Berberena's motion was denied because his original sentence of 135 months was at the bottom of the new range. Gayle's motion was granted in part only, resulting in a 170–month sentence at the bottom of the new range—110 months for the § 922(g) and § 841(a) convictions, and 60 consecutive months for the § 924(c) conviction.⁶

Both Defendants timely appealed.⁷

II.

On appeal, Defendants advance the same arguments they urged below.⁸ They contend that the Commission's revised limitation on proportional reductions suffers from three infirmities, each of which, they say, suffices to deprive it of binding effect. First, they argue that the Commission exceeded its authority under the Sentencing Reform Act (“SRA”) by effectively undoing variances and departures awarded to a prisoner when he was originally sentenced. Second, they argue that, in revising § 1B1.10, the Commission exercised legislative and judicial authority in violation of separation-of-powers principles. Last, they argue that the Commission's notice-and-comment procedure was inadequate to render the limitation an otherwise valid, binding rule. We consider each argument in turn.

A. Commission Authority

Congress granted the Commission the power to issue binding policy statements regarding the extent to which sentences may be reduced based upon retroactive Guidelines amendments. The Commission exercised that authority when it limited courts' discretion to reduce a prisoner's sentence below his amended Guidelines range.

The starting point for our analysis of the Commission's authority is the SRA. Most pertinent here is 28 U.S.C. § 994(u), pursuant to which the Commission amended § 1B1.10. See Notice of Final Action Regarding Amendment to Policy Statement 1B1.10, 76 Fed.Reg. at 41332 (“The Sentencing Commission hereby gives notice of an amendment to a policy statement and commentary made pursuant to its authority under 28 U.S.C. 994(a) and (u).”). That provision states:

If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.

28 U.S.C. § 994(u) (emphasis added). The SRA, then, authorizes the Commission to decide not only whether—“in what circumstances”—an amendment is to apply retroactively but also the extent to which—“by what amount”—sentences may be...